DECISION NO:96/97 CATCHWORDS INDUSTRIAL LAW - Application under s 170EA lodged out of time - Certificate issued by Commission - matter referred to Court - no order made extending time - whether application duly lodged in Court - operation of presumption of regularity Workplace Relations Act 1996 s 170EA, s 170ED(1) Carrasco v Kleenmaid Pty Ltd (unreported, Industrial Relations Court of Australia, 15 November 1996) R v Ludeke; Ex parte the Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513 K Mart Australia Ltd v Ahohua (Print N5272 - 27 September 1996) Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282 Dawson v Westpac Bank Corporation (1991) 66 ALJR 94 Australian Securities Commission v Fairlie (1993) 11 ACLC 654 Re NIAA Corporation Ltd (in Liq) (1993) 12 ACSR 141 Re Bladen [1952] VLR 82 Mallock v Tabak [1977] VR 78 Smith v Smith (1985) 80 FLR 444 Perlt v Kahl (1976) 13 SASR 433 Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 Prasad v Minister for Immigration, Local Government and Ethnic Affairs (1991) 101 ALR 109 Doyle v Western Suburbs District Rugby League Football Club (1994) 57 IR 97 Commonwealth v Verwayen (1991) 170 CLR 394 Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 No. NI 1647 of 1996 RUSSELL WILLIAM EDWARDS v COMMONWEALTH BANK OF AUSTRALIA MOORE J SYDNEY 21 MARCH 1997 IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 1647 of 1996 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: Russell William EDWARDS Applicant AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: Moore J PLACE: Sydney DATE: 21 March 1997 ORDER OF THE COURT THE COURT DECLARES THAT: 1. The applicant's application for relief in respect of termination of employment dated 1 May 1996 is, at 21 March 1997, not, because of the absence of a valid order of the Australian Industrial Relations Commission pursuant to s 170EA(3)(b) of the Industrial Relations Act, 1988, an application to the Court duly lodged within the meaning of s 170ED(2) of the Act. NOTE:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) No. NI 1647 of 1996 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: Russell William EDWARDS Applicant AND: COMMONWEALTH BANK OF AUSTRALIA Respondent JUDGE: Moore J PLACE: Sydney DATE: 21 March 1997 REASONS FOR JUDGMENT On 1 May 1996 Mr Russell William Edwards lodged an application under s 170EA of what is now known as the Workplace Relations Act 1996 ("the Act") with the Australian Industrial Relations Commission ("the Commission"). Mr Edwards alleged in the application that his employment with the Commonwealth Bank of Australia ("the Bank") had been terminated on 13 March 1996. The application is now before the Industrial Relations Court of Australia and an issue has been raised by the Bank whether there is a justiciable application having regard to my judgment in Carrasco v Kleenmaid Pty Ltd (unreported, Industrial Relations Court of Australia, 15 November 1996). Before considering the legal issue, it is necessary to set out some further matters of detail. The application filed on 1 May 1996 was in the form of R28 which is a form found in a Schedule to the Rules of the Industrial Relations Commission ("the Commission's Rules"). Rule 41 of the Commission's Rules required that the applicant be in that form. The form is in a standard format which requires answers to be given to a number of questions. Question 11 is: "Were you given a written notice of termination?" Mr Edwards completed this question by signifying he had been given a written notice of termination and he attached a copy to the application. He also indicated, in response to a subsidiary and related question, that he had received written notice of his termination on 13 March 1996. The document appended to the application was a letter dated 11 March 1996. It read: "Dear Mr Edwards, Request for ill health retirement Your request for ill health retirement has been approved and will be effective from close of business today. The OSF Committee of Management will consider your entitlement to disablement benefits at its meeting on 15 March 1996. Yours sincerely (signed) PA Holt Manager Operations" From the outset of the proceedings initiated by his application under s 170EA, Mr Edwards has contented that this letter brought about a termination of his employment and constituted written notice of the termination. It is a contention repeated in a statement of claim filed in this Court on 28 August 1996 by Mr Edwards in which he alleges: "3. On or about 11 March 1996 the Respondent summarily terminated the Applicant's employment on the, ex facie, basis of ill-health, a written notification of which was received by the Applicant 13 March 1996." The application filed on 1 May 1996 also contained a section headed "Extension of Time". The standard form contained the following which was printed underneath that heading: "This section to be completed if the application is made more than 14 days after receipt of written notice of termination. My reason/s for seeking an extension of time to lodge this application is/are: (or attached)" This section of the application was completed by Mr Edwards and the following was said by him: "I WAS UNAWARE OF THE APPLICATION OF "CONSTRUCTIVE DISMISSAL" TO MY CASE - I AM SEEKING LEGAL ADVISE [sic] ON THIS AND A CONFERENCE WITH MY SOLICITOR HAS BEEN SCHEDULED FOR (3/5/96). FULL DETAILS WILL BE SUPPLIED FOLLOWING LEGAL ADVICE." I should add that the letter to Mr Edwards dated 11 March 1996 appears, from material filed in the proceedings in this Court, to have been in response to a letter of Mr Edwards dated 20 November 1995 to the Acting General Manager, Personnel, Commonwealth Bank of Australia which was in the following terms: "Dear Sir R.W. EDWARDS S/N 112 124 ILL-HEALTH RETIREMENT I hereby apply for ill health retirement. In support of this application, the Bank has already been supplied by me with two (2) medical opinions and two (2) appropriate SIS regulation certifications, one of each by my Pain Management Specialist, Dr Robert Fisher (a leader in his field) and Dr Chris Duncombe. Copies of the medical certifications are enclosed for ease of reference. I also append a copy of an internal Bank memorandum (under the hand of Dr Hill of Occupational Health Division) recommending ill-health retirement in my case. Clearly, the Bank has already satisfied itself of the appropriateness of ill-health retirement in my case. Bearing these three (3) unequivocally supportive medical opinions in mind, and the unreasonable delay the Bank has caused to date (since November 1994), I would be appreciative of the Bank's expeditious promulgation of my exit date to avoid further and continuing substantial, emotional and financial distress visited upon me by the Bank's actions to date. This said delay by the Bank has lead [sic] directly to me being forced, as a last resort, against, my express wishes, to personally initiate my ill-health retirement. I also seek prompt resolution of this matter to arrest the continued detrimental impact upon my spinal condition directly associated with the stress resulting from the Bank's action, as documented by my treating Specialists. Yours faithfully, (signed) R.W. Edwards, B.Com., LL.B." The application under s 170EA was forwarded to this Court on or about 11 June 1996. The file contained a certificate issued by Deputy President Harrison of the Commission. The certificate was dated 7 June 1996 and was in the following terms: "CERTIFICATE In accordance with subsection 170ED(1) of the Industrial Relations Act 1988, the Commission hereby certifies: (i) that it has been unable to settle this matter by conciliation within a reasonable period, and (ii) that the parties in this matter, having been invited to elect to have the matter dealt with by consent arbitration, have not so elected." The certificate was signed by the Deputy President and has the seal of the Commission affixed to it. There is no document in the Court's file which indicates how the application for extension of time was dealt with nor has evidence been led to establish, one way or the other, whether the application was dealt with by the Commission and, if so, how. I should here note that rule 41(5) of the Commission's Rules provides: "(5) If it is intended to make an application referred to in paragraph 170EA(3)(b) of the Act to allow the lodgement of an application under subsection 170EA(1) of the Act more than 14 days after the employee received written notice of the termination, the application under subsection 170EA(1) must include a statement to that effect." It is plain, in my opinion, that, consistent with that rule, Mr Edwards has applied for an extension of time. The need to do so arises from the terms of s 170EA which relevantly provide: "(1) A person (the employee) may lodge with the Commission an application for relief in respect of termination of his or her employment. (2) ... (3) An application under subsection (1) or (2) must be lodged: (a) within 14 days after the employee receives written notice of the termination; or (b) within such further period as the Commission allows on an application made during or after those 14 days." It can be seen that if written notice of the termination is given, as Mr Edwards in the present proceedings contends it has, an application under s 170EA must be made within 14 days of the employee receiving that notice. However that period of 14 days is not inviolate and may be extended by the Commission in exercise of the power conferred by s 170EA(3)(b). The nature of the power conferred on the Commission is to "allow(s)" a further period. A similar issue arose in Carrasco (supra),though there was a material factual difference which I discuss shortly. In that matter the application under s 170EA contained an application for an extension of time. A certificate was issued by the Commission before the application for an extension of time had been dealt with. It was ultimately heard by the Commission and the application for an extension of time was dismissed. Thus the initial application under s 170EA had not been made within the time specified by s 170EA(3). The application under 170EA was referred to this Court in circumstances which I detail in my judgment. However, notwithstanding that the matter had been referred, I concluded that there was no justiciable application before the Court. The following extract from my reasons for judgment sets out the substance of why I reached that conclusion: "It is to be remembered that conciliation occurs because s 170EA(4) deems an application under s 170EA to be a request to settle the matter by conciliation. However, s 170EA(4) operates only on an application "so lodged". That, in my opinion, is an application lodged within 14 days: see s 170EA(3)(a) or such further time as the Commission allows: see s 170EA(3)(b) if it arose from a termination for which written notice was given. Thus, an application which is not lodged in either of these ways, if it concerns a termination where written notice was given, is not an application "so lodged". If lodged out of time, it is not "so lodged" until the Commission allows an extension for time. If it is not "an application so lodged" it is not an application constituting a request of the type referred to in s 170EA(4). It follows, in my opinion, it does not become an application of the type on which the provisions of s 170ED(1) and (2) operate. Accordingly, it is not an application which is to be treated as "duly lodged" with the Court even if the file is sent to the Court. The Commission, in my opinion, has no power to conciliate and issue a certificate until an application for the extension of time has been dealt with if the application relates to a termination where written notice was given and it was lodged more than 14 days after the notice was received. It is only if time is extended that it then becomes an application for the purposes of s 170EA(4) and s 170ED(2). In the present case, the application of Carrasco under s 170EA is not, by operation of s 170ED(2), duly lodged with the Court as the original application was filed out of time and time has not been extended. As the application has not been duly lodged with the Court there is, in my opinion, not a justiciable application under s 170EA for the Court to hear and determine." The factual difference between the circumstances I considered in Carrasco (supra) and those arising in the present proceedings is that the Commission has not, at least as is manifest in documentation provided to this Court either by the Commission or the parties, dealt with the application for an extension of time. If it has dealt with the application for an extension of time and has refused it, then the conclusion I reached in Carrasco (supra) would apply without qualification. If the Commission has extended time, then there would be a justiciable application before the Court. If the Commission has simply failed to deal with the application for an extension of time, then other considerations may arise. Thus the first question that must be answered is whether the Commission has exercised the power to extend time. As earlier noted, there is nothing in the file to suggest it has. If there has been an order extending time, it is not inevitable that a copy would be in the material forwarded to the Court by the Commission. The Commission is only obliged to forward to this Court a copy of the application and the certificate: see s 170ED(1). As earlier noted, the power to extend time is found in s 170EA(3). It is exercised upon application. While s 170EA(3) uses the word "allows", that word relates to the further period in which the application can be made. One would expect that any application considered under s 170EA(3)(b) would be disposed of by an order which would be in writing. This is what happened in Carrasco (supra) though the order in that case was one dismissing the application rather than granting it and extending time. That the determination of the application for an extension of time would be in writing is reinforced by the provisions of s 143 of the Act. Section 143(2)(b) and (c) require that a determination from which an appeal may be made to a Full Bench must reduce the determination to writing and be signed by a member of the Commission. An order of the Commission is appealable: see s 45(1)(b). In my opinion, the Commission is required to dispose of an application for an extension of time by making an order. That order is appealable, and the order must be reduced to writing. While they concerned earlier legislative provisions, the observations of Gibbs CJ and Mason J in R v Ludeke; Ex parte the Customs Officers' Association of Australia, Fourth Division (1985) 155 CLR 513 at 519 and 526 respectively, support this view. I note that a comparatively recent decision of a Full Bench of the Commission, K Mart Australia Ltd v Ahohua (Print N5272 - 27 September 1996), dealt with an appeal against what was described by the majority as an order extending time (see p1 of print N5272) though elsewhere it was suggested that the appeal was against a decision (see p 6 and 9 of print N5272). I also note that the majority left open the question of whether an appeal lay against "a decision pursuant to s170EA(3)" extending time. It is to be remembered that the Commission's power to issue a certificate depends, in circumstances such as the present, upon an extension of time having been granted: see Carrasco (supra). Thus it might be presumed that the certificate was issued regularly and that time had been extended. The presumption of regularity, omnia praesumuntur rite esse acta, has a long lineage: see R H Kersley, Broom's Legal Maxims (London, Sweet & Maxwell Ltd, 1939, 10th ed at 640. It was described in the following way by McHugh JA (as he then was) in Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154 at 164: "The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to the office: M'Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318-319. And a council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583." A particular application of the presumption has the result that where an act is done which can be done legally only after the performance of some prior act, proof of the latter act caries with it a presumption that there has been due performance of the prior act: see McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 849-850, and for more recent applications of that presumption, see Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282 at 297, Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 at 99, Australian Securities Commission v Fairlie (1993) 11 ACLC 669 at 695 and Re NIAA Corporation Ltd (in liq) (1993) 12 ACSR 141 at 144. The presumption may be viewed as a presumption of law: see J D Heydon, Cross on Evidence, (Sydney, Butterworths, 1996, 5th Australian Edition) at para 1175, though a rebuttable one. The presumption prevails if there is no evidence rebutting it: see In Re Bladen [1952] VLR 82 at 86-87; Mallock v Tabak [1977] VR 78 at 84; Smith v Smith (1985) 80 FLR 444 at 450; Perlt v Kahl (1976) 13 SASR 433; and Carpenter v Carpenter Grazing Co Pty Ltd (1987) 5 ACLC 506 at 514. However, as I discuss in Carrasco (supra), the Commission would have had to deal with the extension of time, and have granted it, prior to a member of the Commission embarking upon conciliation. The Commission would plainly have had to have given both Mr Edwards and the Bank an opportunity to be heard before any order extending time was made. There is no evidence of any such hearing. Had the Deputy President or another member of the Commission made an order extending time, the Registrar of the Commission would have been obliged to give a copy to the parties who had appeared at the hearing: see s 143(3)(a)(i). There is no evidence of an order having been made extending time. It would be open to me to infer from the absence of such evidence that there is no record of an order having been made, and thus that no order was made: see Prasad v Minister for Immigration, Local Government and Ethnic Affairs (1991) 101 ALR 109 at 122. Mr Edwards relies on the fact, as he understands it, that the Commission's files are not available for scrutiny. Consistent with the limits that are placed on disclosure of what occurs in conciliation of industrial disputes: see s 104(4) of the Act, the Commission might be obliged not to, or may elect not to, disclose that part of the file relating to conciliation under s 170EB: see also Doyle v Western Suburbs District Rugby League Football Club (1994) 57 IR 97 at 101. However there could be no inhibition in making available any order extending time. Its making would precede conciliation. While the presumption I earlier referred to plays a valuable role in public law, I doubt its efficacy or applicability in circumstances in which the party for whose benefit it might apply would have direct knowledge of the act that might be presumed to have occurred, namely the hearing of the application to extend time and an order granting it. Moreover, in the present case, Mr Edwards said in the course of the hearing when discussing my judgment in Carrasco (supra): "Mr Edwards: Well, you Honour, with respect, I was just looking at the judgment and it seems to be a distinguishing feature that there actually was a dismissal of the extension of time application by the Commission whereas in my case it has not been considered." This, is my view, consititutes a clear admission that the application for an extension of time had not been heard or determined. I also consider that it can fairly be inferred from the following passage appearing later in the transcript that Mr Edwards did not take issue with the fact that an order extending time had not been made: "Mr Meagher (Senior counsel for the Bank): As I understand it, there is one thing that is common ground between Mr Edwards and my client is that there was no order extending time made. And if that is the subject of any dispute, then I would seek to lead evidence to establish that fact. His Honour:Well, I have got - I do not think it is suggested by Mr Edwards that such an order was made. Indeed, I think he accepts that it was not and there is nothing in the file to suggest it was. Mr Meagher:That is so. His Honour:Is that right, Mr Edwards: you accept that no order was made extending time? Mr Edwards:Well, your Honour, my argument revolves around the wording of the legislation itself. It says, "as the Commission allows". I am arguing that as the Commission issued the certificate, it has allowed. His Honour:So your argument is to the effect that it is not necessary for an order to be made? Mr Edwards:No. I, on application fulfilling the terms of the legislation, submitted an extension of time. The Commission has issued a certificate. Therefore, as we have no knowledge of what the Commissioner was thinking or, indeed, the proceedings as learned counsel has now told the court, the Commission has implicitly allowed my application. It is up to the respondent to go back to the Commission and argue that it should be disqualified or whatever. It is not for this court to determine that." Mr Edwards did not take issue with what senior counsel for the Bank asserted was the fact, namely that no order has been made. Rather, Mr Edwards was saying the Commission had allowed his application for an extension of time "implicitly". In the absence of any evidence from Mr Edwards that an order extending time has been made, I am satisfied that no order has been. Time has not been extended. Accordingly the application under s 170EA has not been "so lodged" for the purposes of s 170EA(4) and it is not an application on which s 170ED(2) operates. In my opinion, there is not before the Court a justiciable application. Mr Edwards referred in passing in his written submissions to the Bank having waived its right to take the point about time not having been extended and brief reference was made to estoppel and laches. However this issue goes to the Court's jurisdiction and waiver, so described, cannot operate to confer jurisdiction: see Commonwealth v Verwayen (1991) 170 CLR 394 at 425. I should conclude by saying that this decision may appear to visit upon Mr Edwards an oppressive and unfair result flowing from a technical approach to the Act based upon what might may well be an administrative oversight on the part of the Commission. In a sense it does. However there are, in my opinion, issues of substance about whether time should be extended and, in particular, the strength or otherwise of Mr Edward's contention that there has been a termination of his employment at the initiative of the employer. I have no authority to deal with the application for an extension of time. Plainly, whether time should be extended is a matter for the Commission, though the strength of Mr Edwards case may be a relevant consideration: see Turner v K & J Trucks Coffs Harbour Pty Ltd (1995) 61 IR 412 at 415.7. I propose to make the declaration sought by the Bank though with one minor modification. I certify that the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: Alexandra George Dated: 21 March 1997 APPEARANCES The Applicant appeared in person Counsel for the Respondent: Mr A.J. Meagher SC, with him, Mr R Goot Solicitor for the Respondent: L.E. Taylor Dates of Hearing: 6 and 7 February 1997 Written Submissions Complete: 27 February 1997 Date of Judgment: 21 March 1997